An Ethical Defense of Private Property

LiquidZulu

1 The Problem of Law

Ethics is the science whose concern is the identification of those principles
which contrast right from wrong in the realm of human action. Ethics–like all
sciences–does not stand on it’s own—any given ethical theory must rest upon
the general theory of knowledge, epistemology, and more fundamentally on
the theory of the nature of the universe as a whole, metaphysics. This section
will not be explaining ethical theory as such, rather the focus is placed upon
a specific subset of ethics called law.
To see the problem that law studies picture a desert island inhabited by
Crusoe and Friday. One day, Crusoe finds a branch poking out of a tree that
he expects would make for a perfect spear to fish with. Crusoe takes this
branch out of the tree, processes it into a spear, and heads to the ocean to
get his dinner. On his way there, however, Friday sees this spear that Crusoe
is carrying and imagines that it would suit him in stoking his fire. Friday
decides to try and take this spear from Crusoe for this purpose.
What we notice in this scenario is that it is not possible for both Crusoe
and Friday to get what they want; if Friday is able to successfully wrestle
the stick from Crusoe then his end is satisfied but the end of Crusoe is not,
and vice versa for if Crusoe can repel Friday’s attempts. In short, one mans
action with the spear excludes a whole host of alternative actions that other
men may wish to use the spear in. This is the economic principle of scarcity.1
Given scarcity it is possible for men to come into conflicts, a conflict being
defined as mutually-exclusive actions. So, in the above scenario when Friday
decides to try and take the spear from Crusoe we say that there is a conflict
over that spear; one man’s use of the spear excludes the other from using
it—the actions are mutually-exclusive. This is the issue that law studies,
namely we have this problem of conflicts that can arise due to the fact that
goods are scarce, law answers how we should deal with these conflicts.
1
The term rivalrousness may also be used.

1
 There are three basic answers to this question:2

1. that conflicts should be avoided (the non-aggression principle);

2. that conflicts should be avoided under certain circumstances, but not

always (mixed law), or;

3. that conflicts should not be avoided (the law of the jungle).

2 An Analysis of Competing Legal Theories

2.1 The Law of the Jungle
First let’s consider the law of the jungle—what would a universal acceptance
of conflict-engendering norms look like? If Crusoe were to take a stick from
nature and try to use it for spearfishing, he would not be able to complain
under this system if Friday came along and took that stick from him, because
Crusoe could not claim the stick as his property, the property right would
rather travel from person to person always being attached to the item itself.
In other words, on such a view there would be no distinction whatsoever
between ownership and possession. We would have–in the words of Stephan
Kinsella3 –a “mere possessor” ethic.
The issue with this view is that ownership–which we can define as the
right to possess a given scarce good–is necessarily distinct from possession. If
there is some dispute between A and B over who should be the one to control
a given property, then both A and B must pre-suppose this to be the case. A
is asserting that though B might be able to actually obtain control, it would
nevertheless be the case that A should be the one to control it, and similarly
B is asserting that though A might be able to actually obtain control, it
would nevertheless be the case that B should be the one to actually control
it.
So this mere possessor ethic, which the law of the jungle asserts, would
require a conflation of the concepts ownership and possession, that is to
say that the law of the jungle is the assertion that ownership rights are
acquired by the mere act of taking a given good from someone else—if A has
a stick and B takes that stick from him, then the jungle-jurist says that C
2
This is a modified form of Murray Rothbard’s argumentum e contrario for self-
ownership rights: idem., “Interpersonal Relations: Ownership and Aggression,” in idem.,
The Ethics of Liberty, p. 45
3
Stephan Kinsella, Thoughts on the Latecomer and Homesteading Ideas; or, why the
very idea of “ownership” implies that only libertarian principles are justifiable.

2
could come along and take the stick from B and then become the owner, i.e.
that whomever is in possession of the stick is in fact it’s owner. But, how
exactly is a person to assert this jungle-law view in defense of their actions?
We saw above that both A and B must pre-suppose the distinction between
ownership and possession—they are saying that they should control the item
which implies that they have a right to exclude other people from using it.4
We have this real problem of conflicts that we are trying to resolve and the
jungle law view is simply incommunicable by the fact that it is a contradiction
to even assert—the instant a man tries to defend his conduct by asserting
that conflicts should not be avoided and that rights are illusory he necessarily
asserts that conflicts should be avoided (when initiated against him) and that
rights are real (when the thief is facing a counter-attack).5 So this man would
be left with only the option of sealing up his lips and making no defense,
living as an animal-beast ruled by whatever whims he feels at the moment,
with no concern for whether his conduct is rationally defensible.
So at best the jungle-law ethic reduces into whim-worship, but recall
above that ethics itself rests upon earlier conclusions in metaphysics and
epistemology, so upon what metaphysical and/or epistemic premises does
such an ethic rest? Fundamentally, we have the question of “how should we
be dealing with conflicts, what is criminal?” and the jungle-jurist asserts:
“who gives a damn? Might makes right; live by your arbitrary whims.”
What this means, if taken as a serious ethical proposal, is that whims are a
genuine source of knowledge, i.e. this is not only a whim-ethic, but a whim-
epistemology—it all boils down to “I think this is true because I feel like it
is;” “I should take this spear because I feel like I should.”
But of course, epistemology does not stand on it’s own, it is not pri-
mary in philosophy; rather a given epistemology rests on prior metaphysical
premises. So on what metaphysical premises does this whim-epistemology
rest? What is really being said here is that if you simply think something to
be the case hard enough then it is the case; that your whims, your thoughts,
your consciousness is the basis of reality. That existence conforms to your
consciousness, rather than the other way around. This is the fallacy of the
primacy of consciousness. This view of the law of the jungle or any other
whim-based theory does and must rely on the premise that consciousness–
4
Recall the point about scarcity; if they have a right to control the item in question
this control will necessarily exclude others from using it.
5
For more on this see: N. Stephan Kinsella, “Rights-Skepticism,” in idem. Dialogical
Arguments for Libertarian Rights; LiquidZulu, “The Contradiction of Rights-Scepticism,”
in idem., “2. The Non-Aggression Principle,” in idem., The Fundamentals of Libertarian
Ethics, https://liquidzulu.github.io/the-nap

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mere thoughts–have metaphysical primacy over existence.
The reason that this view is fallacious and an inversion of the correct
way of doing things is that the concept of “consciousness” requires a prior
concept of existence. It is simply meaningless to speak of consciousness as
floating on its own; to be conscious is to be conscious of something. The
whim-epistemologists steal the concept of consciousness. This is akin to
those who assert such things as “property is theft”:

“Theft” is a concept that logically and genetically depends on the

antecedent concept of “rightfully owned property”—and refers to
the act of taking that property without the owner’s consent. If no
property is rightfully owned, that is, if nothing is property, there
can be no such concept as “theft.” Thus, the statement “All prop-
erty is theft” has an internal contradiction: to use the concept
“theft” while denying the validity of the concept of “property,” is
to use “theft” as a concept to which one has no logical right—that
is, as a stolen concept.6

So to bring this into clarity with the case of our whim-epistemologists,

consciousness relies on the antecedent concept of existence—there is nothing
to be conscious of without things existing in the first place. Therefore, this
notion of a law of the jungle wipes itself out—it is a self-defeating idea,
completely unworthy of any consideration at all.

2.2 Mixed Law

2.2.1 Reduction to The Primacy of Consciousness
Next, let’s consider the “mixed law” system(s); i.e. that conflicts should
be avoided under certain circumstances, but not always. First any mixed-
law system that can be reduced to “we must aggress7 in these arbitrary
situations” is refuted by the above reasoning against the law of the jungle.
Allow me to now quickly introduce a number of different proposals for a
mixed-law system such that I may draw your attention to a common principle
among them all:

1. consequentialism—he whose victory would yield the best outcome is

he who should win the conflict at hand;8
6
Nathaniel Branden, The Fallacy of The Stolen Concept
7
Here “aggression” is defined as the initiation of conflict.
8
Utilitarianism would be a sub-category, where “best outcome” means “the outcome of

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 2. racism—he who is fighting for the interests of the preferred race is he
who should win the conflict at hand;

3. Marxism—he who is fighting for the interests of the proletariat is he

who should win the conflict at hand;

4. primitivism—he who is fighting for apocalypse9 is he who should win

the conflict at hand;

5. monarchism—he who is deemed to be the proper victor by the monarch

is he who should win the conflict at hand;

6. democratism—he who is deemed to be the proper victor by majority

opinion is he who should win the conflict at hand;

7. Rawlsianism—he who is deemed to be the proper victor by a party

situated behind a veil of ignorance is he who should win the conflict
at hand,10 and;

8. imperialism—he who is deemed to be an ally by the military leadership

of the preferred country is he who should win the conflict at hand.

You will notice that on their face these ideologies fall under two cate-
gories: (1) the class-based, i.e. “he who is part of the preferred class is he
who should win the conflict at hand,” 11 and (2) the whim-based, i.e. “he who
is deemed to be the proper victor by X is he who should win the conflict at
hand.” It should be clear why the latter would fall under the same reasoning
as used against the law of the jungle; thus I shall focus my efforts on those
class-based mixed-law systems.
Any form of class-based law is an ethic in the form: one rule for class
A and another for class A∁ .12 But by what possible means could one derive
maximal utility.” Utilitarianism specifically can be shown to be false on purely economic
grounds in its use of a category error with the determination of the data type of “utility,”
see: Kenneth A. Zahringer (2011), “Cardinal Utility: It’s Worse Than You Thought,”
Mises Daily
9
Apocalypse here is meant as a break-down in the capital structure, which is what
primitivists such as Ted Kaczynski advocate for. For more on this see: LiquidZulu, Prim-
itivism is an Apocalyptic Ideology.
10
For more on this in particular see: Hans-Hermann Hoppe, Introduction to Murray
Rothbard, The Ethics of Liberty, second edition.
11
This would include 1-4; consequentialism has the class of detrimental individuals as
against the class of beneficial individuals, primitivism has the class of producers as against
the class of anti-producers, racism and marxism are obvious.
12
Here A∁ is the complement of A, i.e. the set of all people who aren’t in the class A.

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that one ethic applies to A and another incompatible 13 ethic applies to A∁ ?
Surely such an ethic could not be derived from the nature of man as such,
because if it were then we would have a universal principle, not one that
applies only to a particular subset of humanity. Therefore, such an ethic
must be arbitrarily particularised—we have an arbitrary distinction which
forms a class of humans and a class of sub-humans, we do not here have a
rational ethic for man. This particularisation then falls back into the primacy
of consciousness and therefore fails.
However, the above reasoning is assuming that this individual accepts
the metaphysical equality of man, as without such an equality it would not
be the case that man as such has a particular nature which implies a certain
ethics but rather there might be a proletarian class with their own proletarian
logic as against a bourgeoisie class with their own bourgeoisie logic. This is
polylogist thesis, first identified by Ludwig von Mises. Polylogism, therefore,
must be analysed before we can proceed. First, the polylogist requirement
that different groups have different logics rests upon the prior assumption
that the laws of logic are subjective, rather than objective14 —that logic is
not imposed upon man as a necessary requirement of validating his beliefs
by the universe, but rather that man himself projects out such rules onto
the universe.
This is, again, primacy of consciousness—the starting point for the poly-
logist is not an observation of reality and derivation therefrom, but rather
a deadly retreat into their own minds. When we have the proper starting
point of existence we have it that the very first thing you can say metaphys-
ically is that existence exists.15 From this we have it that we are conscious
of existence. And of course, to be conscious of existence means that you
are conscious of something that exists, implicit in this is the law of identity:
that which is is what it is, A is A.

If something exists, then something exists; and if there is a some-

thing, then there is a something.16
13
If the ethics were compatible this would then not be one rule for A and another for A∁ ,
it would rather be the same fundamental principle applying to both groups, and would
therefore not be a class-based ethic.
14
I use these terms in their metaphysical sense, i.e. objective meaning mind-independent
and subjective meaning mind-dependent.
15
On this see: Leonard Peikoff, “Existence, Consciousness, and Identity as the Basic
Axioms,” in idem., Objectivism: The Philosophy of Ayn Rand.
16
ibid.

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2.2.2 The Argument from Argument
On top of this, there exists a built-in self-destruct for any mixed law ethic, in
the form of Hans-Hermann Hoppe’s argument from argument.17 The basic
idea behind this attack is found in noticing that there exists an inescapable
inconsistency when it comes to arguing in favour of aggression, borne from
the fact that argumentation is and must be a conflict-free interaction. When
people have some dispute and they choose to argue about it, they are doing
the exact opposite of fighting over the dispute. That is, if Crusoe and Friday
have a disagreement over how to use a spear, then each party sitting down
and giving arguments as to why their use should go forth is quite distinct to
each party launching missiles and trying to stab the other to death in order
that their use may go forth unimpeded.
That is, simply by arguing about property rights, you must pre-suppose
libertarian non-aggression in your act of peacefully attempting to resolve the
disagreement. For our above dispute between Crusoe and Friday, if Friday is
trying to convince Crusoe that the proper use of the spear is to violate Cru-
soe’s bodily autonomy, then he finds himself in a practical contradiction,18
namely he is respecting Crusoe’s bodily autonomy and trying to achieve
consent from Crusoe by his act of arguing, whilst he is explicitly rejecting
that Crusoe’s consent is required in the first place. To escape this contra-
diction, Friday has two options: first, he can stop arguing and go back to
fighting over it, or second, he can drop his claim that Crusoe’s bodily auton-
omy should be violated. In this second case the mixed law or jungle ethic
has trivially dropped out of rational consideration, and in the first case we
have it that Friday has turned himself into an animal-beast governed only
by whim—which makes his ethic irrational still.
What this argument does is highlight an implicit notion we have that such
jungle ethics are irrational and brutish; namely that it is simply inconsistent
and hypocritical for a person to even try to assert them in an argument—that
if they truly believe in their murderous creeds then why the hell aren’t they
living by them? This is the same inconsistency that is present in those anti-
human environmentalists who advocate that fewer humans be born because
of how evil and destructive man is—the proper course with such an individual
17
On this, see: Hans-Hermann Hoppe, “The Ethical Justification of Capitalism and
Why Socialism is Morally Indefensible,” in idem., A Theory of Socialism and Capitalism;
N. Stephan Kinsella, Dialogical Arguments for Libertarian Rights; and Frank van Dun,
Argumentation Ethics and the Philosophy of Freedom.
18
The terms performative contradiction and dialectic contradiction are also often used
here; though dialectic contradiction is really a subset of performative contradictions in
general.

7
is to point out that if they are correct then they should simply kill themselves
and reduce the problem by one.19

2.3 Private Property Anarchism

So, we have it that of our alternative legal systems both the law of the jungle
and any sort of mixed law fall into complete irrationality, leaving us with
total adherence to the Non-Aggression Principle as the only alternative. It
is proper at this point for me to briefly indicate the sort of legal theory that
this implies, but as this is only a defense of private property, I shall not
exhaust said legal theory.20
First, under this theory you will recall that property rights–that is, rights
of exclusive control over scarce resources–are not acquired by arbitrary fiat
whether divine, or social, or personal. Rather property rights are acquired
by a process of homesteading, that is by taking up initial control over the
good in question. In our case of Crusoe taking the spear from nature prior
to anyone else coming into contact with it we saw that there is no conflict
until the moment that Friday attempts to re-possess Crusoe’s spear—taking
things from nature is a legitimate action. We saw that it is Friday who is
committing the crime, that is any latecomers to the spear cannot justifiably
control it, only the firstcomer–i.e. the homesteader–can, any latecomer is
initiating a conflict when they attempt to re-possess the good in question.
We can move simply from this understanding of rational property rights
as conflict-avoiding norms that are obtained by the firstcomer into an in-
sight into the nature of a legitimate homesteading claim, namely that the
borders of said homesteaded property must be objective and intersubjec-
tively ascertainable.21 This fact becomes clear when we break it down into
its constituent parts: first, property borders must be objective—that is they
must adhere to existence as against the arbitrary content of ones conscious-
ness. This is simply another way of explaining that property rights do not
derive by fiat: arbitrary declarations as the basis of property claims simply
cannot avoid conflicts and such a fiat-law rests on untenable metaphysical
19
I believe that this phrasing is from Hans Hoppe but I do not recall from where.
20
If you want to know more about it see: LiquidZulu, The Fundamentals of Liber-
tarian Ethics, https://liquidzulu.github.io/libertarian-ethics; Murray Rothbard,
The Ethics of Liberty; and/or Kris Borer, The Ethics of Anarcho-Capitalism.
21
The latter condition is subsumed within the first under an Objectivist epistemology,
but this is not relevant here and splitting these two up is easier to understand. Objectivists
in the audience will simply have to grit their teeth and trust that I am not trying to
sneak Kant through the back door. If you are interested see: Ayn Rand, Introduction to
Objectivist Epistemology.

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ground. We have it that a rational legal system must be universal, not ar-
bitrarily particularised, thus we cannot have subjective property borders as
subjective property borders may freely contradict each other, leaving the
theory in ruin.
Now let me turn to the criterion that property borders must be intersub-
jectively ascertainable—what this means is that they are “public” and can
be seen or in some other way perceived by third parties. The reason why
rational property borders must be intersubjectively ascertainable is that if
they are not they cannot serve to avoid conflicts, and property rights are con-
flict avoiding norms. Consider a non-intersubjectively ascertainable property
border such as a mere verbal decree—Robinson Crusoe decides that he wants
to own the Moon so he simply shouts to the forest that he now owns the
Moon. Clearly this verbal decree cannot serve to avoid conflicts, when an
astronaut is approaching the Moon he has no means of discovering Cru-
soe’s supposed property right in it, thus Crusoe has not actually engaged in
an act of homesteading—he has not erected an objective, intersubjectively
ascertainable border.

[. . . ] no one could ever deny that norms for determining the

ownership of scarce goods are useful for allowing conflict-free ex-
ploitation of such resources. But, as Hoppe points out, there are
only two fundamental alternatives for acquiring unowned prop-
erty: (1) by doing something with things with which no one
else had ever done anything before, that is, the Lockean concept
of mixing of labour, or homesteading; or (2) simply by verbal
declaration or decree. However, a rule that allows property to be
owned by mere verbal declaration cannot serve to avoid conflicts,
since any number of people could at any time assert conflicting
claims of ownership of a particular scarce resource. Only the
first alternative, that of Lockean homesteading, establishes an
objective [. . . ] link between a particular person and a particular
scarce resource, and thus no one can deny the Lockean right to
homestead unowned resources.22

A further fundamental implication that must here be made explicit is

that these property rights are exclusive both in the sense that they exclude
non-owners,23 and also in the sense that they must be held exclusively by a
22
N. Stephan Kinsella, “Argumentation Ethics,” in idem. Dialogical Arguments for
Libertarian Rights.
23
For more on this beyond what has been explained here see N. Stephan Kinsella’s

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single person. That is, no rational theory of property rights can include group
or collective property rights, they must be private property rights. Consider
a set of people, {A, · · · , Z}, who each commonly own a stick. What is to be
done about a conflict over the use of this stick between A and B? There are
two possibilities, either A is said to be the just victor, or B is. If A, then he
owns the stick and B does not, if B then he owns the stick, and A does not.
But both options contradict the presumption that every member in the set
owned the stick, therefore group ownership simply cannot occur.
Allow me to go over some supposed solutions to this conundrum, the
first of which is the democratic one. Essentially, have all members within
the set vote to determine who the just victor is—still, any who lost the vote
did not own the stick, as their desired control was considered unjust. Also
consider the set which only consists of A and B, what vote could possibly
be conducted between these men which would not come out as A in favour
of A and B in favour of B? If B voted for A or vice versa there would be no
conflict, and law studies only those set of situations where there is conflict
rather than those where men are in harmonious agreement about how things
should be done.
The next proposal for a solution comes from Roderick Long, he sates:24

On the libertarian view, we have a right to the fruit of our labor,

and we also have a right to what people freely give us. Public
property can arise in both these ways.
Consider a village near a lake. It is common for the villagers to
walk down to the lake to go fishing. In the early days of the
community it’s hard to get to the lake because of all the bushes
and fallen branches in the way. But over time, the way is cleared
and a path forms—not through any centrally coordinated effort,
but simply as a result of all the individuals walking that way day
after day.
The cleared path is the product of labor—not any individual’s
labor, but all of them together. If one villager decided to take ad-
vantage of the now-created path by setting up a gate and charging
discussion of Anthony de Jasay’s “let exclusion stand” principle in Thoughts on the
Latecomer and Homesteading Ideas; or, why the very idea of “ownership” implies that
only libertarian principles are justifiable: https://www.stephankinsella.com/2007/08/
thoughts-on-the-latecomer-and-homesteading-ideas/
24
Roderick T. Long (1996), “The Ethical Argument,” in idem. In Defense of Public
Space.

10
 tolls, he would be violating the collective property right that the
villagers together have earned.
Public property can also be the product of gift. In 19th-century
England, it was common for roads to be built privately and then
donated to the public for free use. This was done not out of
altruism but because the roadbuilders owned land and businesses
alongside the site of the new road, and they knew that having a
road there would increase the value of their land and attract more
customers to their businesses. Thus, the unorganized public can
legitimately come to own land, both through original acquisition
(the mixing of labor) and through voluntary transfer.

So Long provides two cases that he sees as legitimate group property:

(1) where a group communally “mix their labour” with an object in nature,
and (2) where a man transfers ownership of his private property to a group
in common. The issue with (1) is that Long relies on the faulty labour
theory of property. It is not mixing labour with land which imbues a man
with ownership, as we have seen it is the nature of scarcity giving rise to
the potential for conflict which implies property rights. To demonstrate the
failure of this theory more thorougly, allow me to quote Kinsella at length:25

As noted before, some libertarian IP advocates, such as Rand,

hold that creation is the source of property rights. This confuses
the nature and reasons for property rights, which lie in the un-
deniable fact of scarcity. Given scarcity and the correspondent
possibility of conflict in the use of resources, conflicts are avoided
and peace and cooperation are achieved by allocating property
rights to such resources. And the purpose of property rights dic-
tates the nature of such rules. For if the rules allocating property
rights are to serve as objective rules that all can agree upon so
as to avoid conflict, they cannot be biased or arbitrary. For this
reason, unowned resources come to be owned—homesteaded or
appropriated—by the first possessor.
The general rule, then, is that ownership of a given scarce re-
source can be identified by determining who first occupied it.
There are various ways to possess or occupy resources, and dif-
ferent ways to demonstrate or prove such occupation, depending
upon the nature of the resource and the use to which it is put.
25
N. Stephan Kinsella, Against Intellectual Property, pp. 36–38

11
 Thus, I can pluck an apple from the wild and thereby homestead
it, or I can fence in a plot of land for a farm. It is sometimes
said that one form of occupation is “forming” or “creating” the
thing. For example, I can sculpt a statue from a block of marble,
or forge a sword from raw metal, or even “create” a farm on a
plot of land.
We can see from these examples that creation is relevant to the
question of ownership of a given “created” scarce resource, such
as a statue, sword, or farm, only to the extent that the act of
creation is an act of occupation, or is otherwise evidence of first
occupation. However, “creation” itself does not justify ownership
in things; it is neither necessary nor sufficient. One cannot create
some possibly disputed scarce resource without first using the raw
materials used to create the item. But these raw materials are
scarce, and either I own them or I do not. If not, then I do not
own the resulting product. If I own the inputs, then, by virtue of
such ownership, I own the resulting thing into which I transform
them.
Consider the forging of a sword. If I own some raw metal (because
I mined it from ground I owned), then I own the same metal after
I have shaped it into a sword. I do not need to rely on the fact
of creation to own the sword, but only on my ownership of the
factors used to make the sword. And I do not need creation to
come to own the factors, since I can homestead them by simply
mining them from the ground and thereby becoming the first
possessor. On the other hand, if I fashion a sword using your
metal, I do not own the resulting sword. In fact, I may owe you
damages for trespass or conversion.

Of course, both of Long’s cases, that of group “labour mixing” and that
of transferring a private property right to a collective fail on the grounds
that they do not resolve the contradiction—we still have it that the subset
deemed unworthy of control do not actually own the property in question.
For his second case in particular, Long is making the error of placing contract
theory at the root, rather than property theory. But contracts are contracts
about property—a contract defines a set of transfers of title to property. The
concept of “contract” is descendant from, not antecedent to the concept of
“property.” This is the stolen concept fallacy—Long steals the concept of

12
contract in his attempted inversion.26
So to summarise: our rational theory of law has it that property rights
are private rights of exclusive 27 control over scarce resources, whose purpose
is to avoid conflicts over said resources.

26
See Nathaniel Branden, The Fallacy of The Stolen Concept
27
In the sense of excluding people from the property.

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